Reported Decision : (2002) 134 A Crim R 296 New South Wales Court of Criminal Appeal CITATION : R v Moussa (No. 2) [2002] NSWCCA 408 FILE NUMBER(S) : CCA 60119/01 HEARING DATE(S) : 30/09/2002 JUDGMENT DATE : 4 October 2002 PARTIES : Regina v Victor Ian Moussa JUDGMENT OF : Spigelman CJ at 1; Howie J at 2; Smart AJ at 29 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0418 LOWER COURT JUDICIAL Kinchington DCJ OFFICER : COUNSEL : R. Herps - Crown S. Odgers SC with M. Allen - Applicant SOLICITORS : S.E. O'Connor - Crown D J. Humphreys - Applicant CATCHWORDS : Criminal Practice and Procedure - application to re-open appeal - fresh ground of appeal - miscarriage of justice by the absence from trial of evidence of two witnesses who were available to defence but not called at trial. LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 - s 25 Evidence Act 1995 - s 66 CASES CITED: R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 Crisologo (1997) 99 A Crim R 178 DECISION : Application is granted, appeal is re-opened and allowed. Conviction and sentence quashed and new trial ordered. IN THE COURT OF CRIMINAL APPEAL 60119/01 SPIGELMAN CJ HOWIE J SMART AJ FRIDAY 4 OCTOBER 2002 R v Victor Ian MOUSSA (No 2) Judgment 1 SPIGELMAN CJ: I agree with Howie J. 2 HOWIE J: This is an application to re-open an appeal against conviction in order to argue a ground of appeal which was not relied upon when this Court, differently constituted, determined to dismiss the applicant's appeal against his conviction, see R v Moussa [2001] NSWCCA 427; 125 A Crim R 505. The orders of the Court, which determined the appeal and which were made on 15 November 2001, have not been perfected and this Court, therefore, has jurisdiction to entertain the present application. 3 The fresh ground of appeal asserts that there was a miscarriage of justice by the absence from the trial of evidence from two witnesses who were available to the defence but were not called in the District Court. There is a question as to whether the evidence is, strictly speaking, fresh evidence, but in my view it is unnecessary to resolve that question in the present case. 4 The applicant was convicted in the District Court of two counts of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act. There is no present need to review the evidence called at the trial: it is set out in some detail in the Court's earlier judgment. In summary it was the Crown's case that the applicant had in his possession ecstasy tablets inside a computer case found in the boot of his motor vehicle. There were two different types of ecstasy tablets present in the case and, in respect of one type, there was not less than a commercial quantity of the drug. 5 There was no dispute that police located the drugs in the applicant's motor vehicle after they stopped and searched it. What was very much in dispute was evidence given by those police officers that, at the time the drugs were located, the applicant admitted that the tablets belonged to him and made statements from which it might be inferred that he knew the nature of the substance they contained. These alleged admissions were the central plank in the Crown case. However, the admissions had not been recorded by electronic means because, when the applicant later attended the police station with a solicitor, he declined to be interviewed about the matter. 6 The appellant gave evidence at the trial denying that he had made the statements attributed to him. He said that he told the police that he was unaware of the existence of the computer case and its contents prior to the search of the vehicle. He also gave the jury an explanation as to how the computer case had come to be in his vehicle without his knowledge. I will refer to this matter more fully shortly. 7 The trial judge directed the jury that the real issue for their determination was whether they were satisfied beyond reasonable doubt of the truth of the evidence of the police officers concerning the alleged admissions. However, there was one matter that, in my view, would have adversely affected the credit of the applicant to a very significant degree. This was a defence exhibit that proved, by the end of the trial, to have been a forgery. The circumstances in which that exhibit came to be tendered and its relevance in the trial are set out in this Court's earlier judgment and it is unnecessary to repeat them. The applicant's explanation for his possession of that document was, to say the least, unconvincing. 8 The application to re-open is founded upon statements of two persons who, it is said, could give relevant evidence, which had it been called in the trial, might have resulted in the applicant's acquittal. It is conceded by Senior Counsel appearing for the applicant that the evidence was available at the time of the trial in that it was known to exist. But it is submitted that, for whatever reason it was not called, the applicant was deprived of the benefit of this evidence in circumstances that give rise to the possibility of a miscarriage of justice. 9 There is material before this Court explaining why it was that this ground of appeal was not relied upon at the earlier hearing. In brief the evidence is that the solicitor, who was acting for the applicant on the appeal, did not believe that the applicant could rely upon the evidence because its existence was known at the time of the trial and the failure to call the witnesses appeared, on the material then available to him, to have been a tactical decision of trial counsel. He had not made Senior Counsel, who appeared for the applicant on the hearing of the appeal, aware of the existence of the evidence. At the hearing of this application the Crown did not seek to cross-examine the solicitor nor did it oppose the application on any basis other than that the failure to call the evidence at the trial did not give rise to the possibility of a miscarriage of justice. 10 One witness who is the subject of this application is the applicant's cousin, Eddie Dib. He could give evidence relevant to the issue of the reliability of the police officers as to the admissions allegedly made by the applicant during the search of his vehicle. In order to understand the proffered material it is necessary to refer briefly to the evidence on this matter at the trial. 11 The applicant and his cousin were passengers at the time the vehicle was pulled over by police. After the police had ascertained that the applicant owned the vehicle, they commenced to search it. The applicant was standing alongside Constable Zimmerman when he located the tablets in the computer bag: The evidence of the officer as to the conversation that there took place was as follows: …I said, "Are these yours?" Mr Moussa said: "Yes". I said, "Tell me what they are. He said, "They're musks". I said, "All of them? There is quite a few of them." He said, "Yes". I said "Why are they all in plastic money bags?" He said, "That's the way they come when you buy them wholesale." After this conversation, the officer inspected the tablets more closely, and when he challenged the applicant about the tablets being "musks", the applicant told him they were diet pills and added, "They are not what you think they are". 12 The applicant's evidence as to the conversation at the boot of the vehicle was as follows: Constable Zimmerman then said to me, "Is the bag yours?" I said "No". Then he's looking inside the bag and pulled out a bag with some pink tablets in it. He said, "What are these?" I said, "I don't know"… He said, "Are these yours?" and I said, "No". …I remember that Paul Goncalves had the car and his wife was selling Herbal Life substances. I thought they could be dietary tablets. … I said that, "The car has been loaned out, I wasn't in the control of the car. The car had been loaned out as a loan car". … I said to them that the person that was in charge of the car was a dietician. 13 Mr Dib would give evidence touching two matters; the applicant's conduct during the search and what he said after the police left the scene. The latter would have been admissible hearsay under s 66 of the Evidence Act, see Crisologo (1997) 99 A Crim R 178. 14 In an affidavit sworn on 28 May 2002 and tendered on this application without objection from the Crown, Mr Dib stated: 13. Whilst searching the boot I saw one of the Police Officers pull out a bag which was dark coloured and looked like a lap top computer bag. I saw the Police Officer place it on the bonnet of the Police car and both Police were looking through it. [The applicant] was standing with the Police at the front of the Police car at this time. 14. Whilst looking through the bag I could hear that the Police was speaking and [the applicant] said something. However, I could not hear what was actually being said. I do remember the Police showing [the applicant] some satchels which I saw them hold up and show him. I could see [the applicant] shaking his head and shrugging his shoulders. Later in the affidavit, Mr Dib referred to a conversation he had with the applicant after the departure of the police, as follows: 18. At this time I recall asking [the applicant] what it was that the Police had shown him, and what they stopped us and search the car for. [The applicant] said something like "the Police stopped the car because they said he was unregistered because of unpaid fines". He then said "they wanted to search the car because they thought I had a gun licen[c]e". At this time Joe, Charlie and I were standing with [the applicant] near the car. I remember [the applicant] also telling us that the Police had found a bag in the boot and they showed him some tablets. He said "they asked me what they were, I said I didn't know, I said they looked like diet tablets. I told them I don't know who owns the bag I told the Police that. 15 A significant difficulty for the applicant in relation to the reliability of this material is that in a statutory declaration sworn by Mr Dib on 11 February 1999 he made no mention of the conversation set out in paragraph 18 of his affidavit. 16 Although trial counsel was called to give evidence on the present application, he could now offer no explanation for the absence of Mr Dib from the trial. He was aware at the time of the trial of the evidence, having himself interviewed Mr Dib, and he recalled the substance of what the witness could say to assist the applicant, including the conversation set out above. But he could no longer recall how it came about that the witness was not called in the defence case. All he could say was that he did not now recall making a conscious or tactical decision not to call the witness. Mr Dib, himself, was unable to shed any light on why he did not give evidence, he having attended court in relation to the proceedings against the applicant on a number of occasions. The applicant did not give evidence before this Court. 17 Senior Counsel for the applicant accepted that the failure to call this witness was not the strongest foundation for the present application, and I have not been persuaded that the failure to call Mr Dib alone gives rise to a possibility of a miscarriage of justice. I come to this conclusion having considered the reliability of the evidence, its possible significance when considered against the evidence called at the trial and the failure by the applicant to explain how it was that the witness, who was apparently readily available and anxious to give evidence, did not do so. 18 The second witness now relied upon is Mr Scevola. His evidence would have been relevant to the provenance of the computer bag in which the police found the ecstasy tablets. Again, in order to understand the significance of what this witness might have said at the trial, it is necessary to refer briefly to the evidence on that subject called by the defence before the jury. 19 The applicant testified that he was the manager of a car repair business and had a client named Paul Goncalves with whom he occasionally had business dealings. In the normal operation of the applicant's business it was necessary to provide clients with a "courtesy car" to be used by them when their own vehicles were being repaired. It was the applicant's evidence that in the days preceding the finding of the drugs he had provided his own motor vehicle to Goncalves for this purpose and it had been returned to him shortly before the vehicle was stopped by police. The Crown sought to counter this evidence by proving that Goncalves had a number of motor vehicles registered to him at the relevant time and, therefore, was unlikely to have required the applicant's motor vehicle. The defence also called a police officer, Detective Small, to give evidence that he had received information that Goncalves had supplied ecstasy tablets, similar to those found in the computer case, on at least one occasion. 20 In an affidavit of 9 May 2002 Mr Scevola states what he knew of Goncalves and a computer case identical to that found in the applicant's vehicle. He met Goncalves in late 1996 when the witness was operating a car wash business. Thereafter Mr Scevola became well acquainted with him and his family. As to Goncalves involvement with the computer case and drugs, Mr Scevola stated: 9. On many occasions when Mr Goncalves would come to the carwash I noticed his eyes would often be very red and when he walked he appeared to have difficulty keeping his balance or not to stumble. On these occasions he would always have a black bag with him, similar to a computer bag used for carrying a laptop or notebook style computer. The bag wasn't as large as a briefcase. I recall the bag having a handle and a zipper and a logo. My recollection is the logo may possibly have said "IBM". I also noticed on many occasions when Mr Goncalves would buy food or sandwiches or focaccias and drinks at the cafe that he would remove large wards of cash from his pocket from which he would remove money to pay. On one occasion one of the workers at the car wash spoke with me and told me words to the effect that "I found some small pills in this man's car". These pills were returned to Mr Goncalves. I never saw the pills nor did I speak to Mr Goncalves about them. 10. I also remember that the computer bag had a small tear in it towards the bottom corner. The bag was not new, it was well worn. Since that time I have been shown a photograph, which I understand was exhibited in the District Court criminal trial proceedings of Victor Moussa. Having seen that photograph shown to me by the Barrister with the conduct of Victor Moussa's criminal appeal, I believe it is one and the same as the bag Mr Goncalves used to bring with him to the car wash. I say this because of the two distinguishing features, the blue logo and the tear near the bottom. 21 Trial counsel interviewed Mr Scevola and a proof of evidence was taken from him shortly before the trial commenced. Mr Scevola actually attended at the trial on Thursday 15 February 2001 in order to give evidence. During the morning he was called before the court and informed by the trial judge that his evidence could not be taken before 2 pm and he would be bound over to return at that time. Mr Scevola asked to be excused until 3 pm as he had to attend to personal business. That application was granted. However at 3 pm the trial judge was involved in a discussion with counsel as to the relevance of evidence being tendered by the defence and adjourned the proceedings for that matter to be resolved without giving defence counsel the opportunity to call Mr Scevola. As it happened, Mr Scevola was running late and arrived at about 3.15 pm, after the court had adjourned for the day. Mr Scevola stated in his affidavit that he understood defence counsel to say to him, "The judge was not prepared to wait for you". However, the trial transcript makes it clear that the trial judge and counsel were not aware that Mr Scevola had failed to return when the court was adjourned. 22 The next day, Friday, the trial did not proceed because defence counsel was required to appear in the Supreme Court. On Saturday Mr Scevola left Australia to spend some weeks in Italy. There is some dispute as to whether defence counsel was aware that Mr Scevola was to be out of Australia for some period of the trial. Trial counsel told this Court that he did not learn of Mr Scevola's trip overseas until he attempted to contact him during the weekend to ensure his attendance at the trial on the following Monday. Mr Scevola however stated that he told counsel on the Thursday afternoon, when he returned to the court, that he was to leave on the weekend to travel to Italy. However that may be, defence counsel said nothing at the trial about his inability to call Mr Scevola when the trial resumed on the Monday. He could not now explain why he did not bring this matter to the attention of the trial judge. 23 The Crown submitted that this Court should conclude that defence counsel must have been satisfied with the evidence he had obtained from Detective Small to support his client's evidence that the computer bag and the drugs inside it must have belonged to Goncalves. If counsel did take that course, and he denied it during cross-examination, it was very unwise of him given both the lack of credibility that his client would have had in the eyes of the jury because of the forged document and the limited evidence given by the Detective to connect Goncalves with the drug found in the computer bag. 24 The simple fact is that, through no fault of the applicant, a witness who could have given significant evidence was not called before the jury. Some question arises as to why nothing was done to ensure that Mr Scevola's evidence was secured before he left the country, but it is clear that he was ready and willing to give evidence on the Thursday before he departed. It is impossible to see how a responsible defence counsel could make a tactical decision to abandon the evidence. Its absence before the jury seems to have been a result of misadventure rather than a conscious decision taken by the applicant or his counsel. 25 On the limited opportunity that I had to assess Mr Scevola, there appears to be no reason why a jury might not place weight upon his evidence when determining whether the Crown had proved that the applicant had made the admissions attributed to him. If there were a reasonable possibility that Mr Scevola was telling the truth, a jury might conclude that it was unlikely that the applicant would have accepted ownership of the drugs as the police asserted that he did. At least a jury might have a reasonable doubt about that crucial matter. 26 The Crown case, being almost totally dependent upon uncorroborated evidence of verbal admissions made by the applicant, was not strong. Clearly it received a significant boost when the defence exhibit proved to be a forgery, particularly in light of the applicant's explanation for his possession of it. But that fact makes Mr Scevola's evidence all the more important in re-establishing the applicant's credit and possibly raising a doubt about the reliability of the admissions. 27 I am persuaded that in all the circumstances of this case, the absence of the evidence of Mr Scevola gives rise to the possibility that a miscarriage of justice occurred when the jury convicted the applicant. Therefore, I would grant the application and allow the appeal. However, it should be noted that there are a number of unsatisfactory aspects to this matter, not the least being that this Court was permitted to determine the applicant's appeal without this ground being placed before it. 28 I propose that the application be granted, the appeal be re-opened and allowed. I would quash the conviction and sentence and order a new trIal. 29 SMART AJ: The facts and circumstances are set out in the judgment of Howie J. I agree that the absence of the evidence of Mr Scevola gives rise to a reasonable possibility that a miscarriage of justice occurred. I am not sure that much could have been achieved by telling the judge that Mr Scevola had had to go overseas for a few weeks unless an application was made to discharge the jury and for a new trial. That application had poor prospects of success. 30 I express no opinion as to the evidence of Mr Dib. I do not regard the omission of the substances of paragraph 18 of his affidavit from his statutory declaration as necessarily being significant. The statutory declaration was a broad summary of the position and did not contain the detail found in the affidavit. 31 I regard the failure to record the alleged admissions at the scene as important. At the new trial it may be necessary to enquire why a hand held tape recorder was not used at the scene and if the police did not have one with them why one was not obtained. 32 I agree with the orders proposed by Howie J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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